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Faculty Scholarship Digest

July 2010

On a regular basis, Dean Michaels prepares a memorandum summarizing recent scholarship published by members of the Moritz faculty. The College boasts 50+ faculty members with national and international reputations. The range of influential and innovative legal scholarly works produced by our distinguished faculty reflects a variety of perspectives, interests, and areas of expertise.

Articles

In this article, a keynote address Doug gave at Temple, Doug Berman argues that a procedure for a “second-look” at sentencing should be mandated by legislatures in every state. The article surveys the mass incarceration crisis and the evidence that one of its causes is the reduction in parole and clemency in combination with the fact of mandatory sentencing. Doug’s proposal is that prosecutors should be forced to give a “second look” in cases after sentence and be required to recommend at least one out of every 100 cases to the relevant authorities (e.g., the parole board or the governor) for more lenient treatment. Doug argues that this forced “second-look” would not only help ameliorate the mass incarceration problem, but would also help restore the habit of having a safety valve at the back end of the system. Doug has concluded elsewhere that the diminishment of parole has been a mistake, but he thinks that the absence of a role for prosecutors in the parole process is part of the explanation for its political demise. Thus by mandating a prosecutor-driven "1% solution," Doug hopes that the door will be opened to renewed review of punishments after the prosecutor's first look.

This article offers a full-throated defense on normative grounds of the Supreme Court’s 5-4 decision last year holding that collective bargaining agreements may contain arbitration clauses that require unionized employees to arbitrate statutory discrimination claims. Sarah anticipates academic attack on the decision on the grounds that labor arbitration will be a poor substitute for litigation in defending against discrimination and that union willingness to “bargain away minority members’ rights to the judicial forum is but one more sign of union bias against women and minorities.” The article vigorously contests both of these assertions.

Regarding the competence of labor arbitration and arbitrators to resolve federal statutory claims, Sarah surveys numerous prominent studies and informed opinions---from the authors of the leading arbitration treatise to Judge Harry Edwards---concluding that arbitrators are the equal of courts in resolving such claims. One study, for example, found that reversal rates of arbitrators by district courts on de novo review were no higher than reversal rates of district courts on appellate review in similar cases. As for the argument that unions might “sell out” the rights of their minority members for majority benefits, Sarah contends first that the conception of unions as sexist and racist organizations is divorced from contemporary reality. Citing a number of empirical sources, she argues that “[i]n the modern era, unions have, perhaps primarily for practical reasons, become the natural allies of the civil rights and women’s movements.”

Beyond that alignment of interests, the article points to statutory duties of fair representation and nondiscrimination by unions and, perhaps most importantly, contends that unions are best placed to negotiate favorable arbitration provisions and that “arbitration presents employees with their best opportunity to have their cases heard.” On this point, Sarah reviews studies of the results from nonunion employment arbitration both in comparison to union (labor) arbitration and to litigation in the antidiscrimination context, and finds support for the view that union members will be better off in arbitration.

Finally, the article discusses psychological reasons why union-members would be best-served by representation through repeat-player experts (the union) rather than by handling discrimination claims individually through litigation.

In this article, part of a significant invited symposium on Professional Responsibility, Art takes an in-depth look at the impact of Model Rule 5.5, which was adopted by the ABA House of Delegates in 2002, which was designed to change the rules governing multi-jurisdictional practice. Multi-jurisdictional practice had largely outgrown the formal rules in many jurisdictions, so that the issues of legality, certainty, enforcement and efficiency that arise when de facto and de jure rules diverge were presented. The drafters of the Model Rule hoped to alleviate them by drafting a rule that would track contemporary practice and achieve widespread adoption. The article offers careful descriptive analysis covering both the extent of adoption and the issues that have arisen in the adoption, providing a nuanced perspective that can be inadequately summarized as “the drafters’ hopes have been partially realized.” Art’s analysis makes clear the protectionist and other competitive pressures influencing outcomes, as well as the variety of approaches to reciprocity and the “legitimate” state concerns about client protection that have proven significant. The article also notes some underappreciated consequences of the Model Rule, including the decline of “local counsel”—now either unnecessary or insufficient—and the potential impact of increased enforcement in the Rule’s remaining sphere.

Steven F. Huefner, Don’t Just Make Redistricters More Accountable to the People, Make Them the People, 5 DUKE J. OF CONST. L. & PUBLIC POLICY 37 (2010).

This symposium contribution considers methods of creating an apolitical resdistricting process. (While noting questions about the desirability of creating such process, the article presumes for its discussion that doing so would be desirable.) By apolitical redistricting, Steve means “redistricting that is not allowed to intentionally promote the broader partisan political interests of those controlling the redistricting,” as opposed to a different meaning---redistricting that is simply blind to partisan consequences. The article pays close attention to extant redistricting experiences and the records of efforts to depoliticize the process, including description of current efforts in California and Ohio. One conclusion Steve draws from this analysis is that “[w]hen redistricting criteria are presented prepackaged by a particular reform community, they can be easy targets for opponents to attack,” since almost all “potential criteria has some vulnerabilities to be exploited,” prone to be “rejected as ‘elite’ meddling.”

One alternative, Steve suggests, would be more politics, rather than less. Steve suggests the successful path will involve a “citizen-led redistricting institution,” such as a citizen assembly or some sort of public mapmaking competition. Difficult as this may be to envision, Steve emphasizes that other reform efforts have regularly failed and that this approach could overcome some of the vulnerabilities that have led to those failures, particularly the low political salience of redistricting among the general public and “public skepticism towards elite and unaccountable commissions.” Steve applies these insights to the recent efforts in California and Ohio, including the Joyce Foundation’s current campaign for “Accountable Redistricting” that Election Law @ Moritz is participating in.

Book

Ruth took on the revision of this 500 page treatment of federal disability law following the retirement and passing of the authors of the previous editions. The last edition was published in 2004, and a great deal has happened in disability law since then, including the passage of the Individuals with Disabilities Education Act in 2004 (a five-chapter subject) and the passage of the ADA Amendments Act of 2008, which was designed to “reverse various court decision that had narrowly construed the coverage of the ADA.” Federal disability law provides substantial substantive rules related to employment, education, and access to public accommodations and transportation for the tens of millions of Americans with physical or mental disabilities (Congress estimated the number at 43 million in 1990, when the Americans with Disabilities Act was passed). In short, this is a broad area of law with the complexity one would expect, pervading every level of society and intersecting with many areas of law, but also a field of relatively recent vintage, still young and evolving at 20 years. No one is more expert in this area than Ruth, and this volume provides the answers to literally hundreds of questions that might be posed both by current students and by those of us (still the majority in practice) who went to law school before passage of the ADA.

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